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2013 DIGILAW 799 (HP)

Shashi Bahadur v. State of H. P.

2013-09-05

DEV DARSHAN SUD, DHARAM CHAND CHAUDHARY

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JUDGMENT Justice Dev Darshan Sud,J (oral). The appellant stands convicted for murdering his wife Dhansari, on 13.05.2007. 2. The prosecution case, in brief, is that the bodyof the deceased was recovered next day i.e. on 14.05.2007 at around 5.15 AM. The postmo rtem report is proved by Dr.Surinder Kumar (PW.6), who states that the deceased was having visible injuries on her face, neck and left foot with clotted blood. He found the following injuries on her body recorded in post mortem report Ex.PW.6/A:- 1. Stab wound above left eye circular in shape 1.5 cms. in diameter underlying bone visible. 2. 2.5 x 2 cms. lacerated wound below left ear. It is muscle deep with the tip of the left ear lobe lacerated. Clotted blood present at injury. 3. Lacerated wound left foot on medial side proximal to great toe. It was 6 x 3 cms. size underlying tendons visible clotted blood present at injury. All the above injuries are ante mortem in nature. 4. Postmortem abrasion on back in lumber region on left side. It was 6 x 15 cms. in size. On examination of the neck, following injuries were found: 1. Bruises were found on the front and sides of the neck bilaterally. 2. Face, lips were cyanosed. Tongue coming out of the mouth in between the teeth. Patechial haemorrhage were present on the face. Face appears swollen. On examination of the eyes: 1. Right eye closed. Eye ball prominent. Pupil dilated. Sub conjectival haemorrhage present positive. 2.Left eye closed on examination it was perforated and contained clotted blood. No external injury was visible.On dissection of the neck, I found: 1. Sub cutaneous tissue of the neck below the injury contained dark coloured blood. 2.Bruising of the muscles surrounding larynx. 3. Hyoid bone fractured at greater cornuae and it is displaced inward. According to his opinion, injuries could be caused with the pointed side of the Khilna Ex.P- 1 (implement used for gardening). According to him the deceased might have died due to “throat strangulation manually”. The duration between death and postmortem was approximately 3 days. The injuries sustained over the body might have been caused by some pointed object (as shown by the police). The other injuries sustained over the body of the victim were not sufficient to cause death.3. The prosecution basically relies on the evidence of Sh.Kirath Bahadur (PW.3). The duration between death and postmortem was approximately 3 days. The injuries sustained over the body might have been caused by some pointed object (as shown by the police). The other injuries sustained over the body of the victim were not sufficient to cause death.3. The prosecution basically relies on the evidence of Sh.Kirath Bahadur (PW.3). He states that he was working as a peon in the State Electricity Board. He states that Sanjeet Kumar was also working with him. The deceased and the accused were living together in Chhambdhar in the orchard of Sh.Ramesh Negi. 13.05.2007 was Sunday and at around 9.30 AM he was going to the Bazar along with Sanjeet Kumar, where the accused met them. He (accused) told them that he is going to Shimla to give money to his son in law, who is unwell. After sometime, he (PW.3), Sanjeet Kumar and the accused went to Sangam Hotel Bar and consumed liquor. The accused did not go to Shimla on that day and was sent by them to the house of Sh.Ram Singh (PW. 1) so that he could keep the money there in safe keeping as he was prone to squander it. The accused had missed the bus for Shimla. PW.3 Kirath Bahadur and the accused had decided to go to Shimla on the next day as he (PW.3) was to get himself checked up in Indira Gandhi Medical College. In the morning on 14.05.2007, he and the accused went to the house of PW. 1 Ram Singh, from where the accused took the money kept in safe keeping on the previous day. Thereafter, he and the accused boarded a bus at Chopal for Shimla at around 5.40 AM. He stated that on 13.05.2007, after drinking together, he, Sanjeet Kumar and the accused left for their respective homes at around 4.00 PM. On 13.05.2007, at around 8.30 PM again the accused came to his house, took dinner and slept there during the night, at that house, he was normal. On 14.05.2007, he and the accused came to Shimla, where the accused paid !2000/- to his son in law and in the evening they returned to Chopal. He further states that he had gone to the house of the accused on 14.05.2007 and found the door shut, which was neither bolted or locked. On 14.05.2007, he and the accused came to Shimla, where the accused paid !2000/- to his son in law and in the evening they returned to Chopal. He further states that he had gone to the house of the accused on 14.05.2007 and found the door shut, which was neither bolted or locked. The door was opened by the accused, who went inside and called his wife, but found her dead, lying on a cot, with her body covered by a blanket. The accused then sat near the chullah (hearth) quietly. He did not talk or speak. We are not adverting to the cross-examination of this witness as this is the crux of the case. 4.We advert to the evidence of Sh.Ram Singh (PW. 1), who also supports and purportedly corroborates the version of PW.3 Kirath Bahadur. This is the evidence coupled with medical evidence which forms the backbone of the prosecution case, which also relies upon circumstantial evidence for conviction of the accused. PW. 1 Ram Singh states that deceased is his cousin and married to the accused. On 14.05.2007, Sanjeet Kumar came to him at around 7.00 PM and told that the dead body of his sister Dhansari is lying in the dera. He went there and found her body lying on a cot covered with a blanket. He lifted the blanket and saw injuries on her head and foot. He also noticed clotted blood and blood on the dari. He lodged a report with the police and he was joined in the investigation. According to him, he asked the accused as to how Dhansri has died, whereupon he told him that she had given money to him which the accused had utilized and because of this a quarrel took place between him and his wife. We do not advert to the cross- examination of this witness. We may note that the learned trial court has considered the case in a most casual manner without even adverting to any of the circumstances and has not considered the evidence in its totality. We need not reiterate the principle of applicability for conviction on the basis of circumstantial evidence. In D.D. Raju Versus State, by Inspector of Police, AIR 2009 SC 2171 , the entire law in circumstantial evidence has been reiterated holding:- 5. We need not reiterate the principle of applicability for conviction on the basis of circumstantial evidence. In D.D. Raju Versus State, by Inspector of Police, AIR 2009 SC 2171 , the entire law in circumstantial evidence has been reiterated holding:- 5. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan ( AIR 1977 SC 1063 ); Eradu and Ors. v. State of Hyderabad ( AIR 1956 SC 316 ); Earabhadrappa v. State of Karnataka ( AIR 1983 SC 446 ); State of U.P. v. Sukhbasi and Ors. ( AIR 1985 SC 1224 ); Balwinder Singh v. State of Punjab ( AIR 1987 SC 350 ) ; Ashok Kumar Chatterjee v. State of M.P.( AIR 1989 SC 1890 ). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab ( AIR 1954 SC 621 ), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.6.We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. V. State of A.P. (1996) 10 SCC 193 , wherein it has been observed thus: “In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence “ 9.In Padala Veera Reddy v. State of A.P. and Ors. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence “ 9.In Padala Veera Reddy v. State of A.P. and Ors. ( AIR 1990 SC 79 ), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: “(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.10. In State of U.P. v. Ashok Kumar Srivastava, (1992 Cri LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. In State of U.P. v. Ashok Kumar Srivastava, (1992 Cri LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.11.Sir Alfred Wills in his admirable book “Wills’ Circumstantial Evidence “ (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence : (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted.” 12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.13. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, ( AIR 1952 SC 343 ), wherein it was observed thus: “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”14. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, ( AIR 1984 SC 1622 ). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must’ or ‘should’ and not ‘may be’ established; (2)the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3)the circumstances should be of a conclusive nature and tendency; (4) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.15. These aspects were highlighted in State of Rajasthan v. Raja Ram ( 2003 (8) SCC 180 ); State of Haryana v. Jagbir Singh and Anr. ( 2003 (11) SCC 261 ); Kusuma Ankama Rao v. State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and Manivel and Ors. V. State of Tamil Nadu (Crimina Appeal No.473 of 2001, disposed of on 8.8.2008). (pages: 2174-2175) 5. We find that appellant has been charged with a serious offence and the accused was sentenced to undergo imprisonment for life. We further find that the evidence is most circumspect. The evidence of Sh.Ram Singh (PW. 1) and Sh.Kirath Bahadur (PW.3) is self contradictory. According to Ram Singh (PW. (pages: 2174-2175) 5. We find that appellant has been charged with a serious offence and the accused was sentenced to undergo imprisonment for life. We further find that the evidence is most circumspect. The evidence of Sh.Ram Singh (PW. 1) and Sh.Kirath Bahadur (PW.3) is self contradictory. According to Ram Singh (PW. 1) the motive was that the accused had utilized the money, which was to be given by him to his son in law because of which a quarrel took place between him and his wife. Kirath Bahadur (PW.3) states that money was kept with PW. 1 Ram Singh. It is also in evidence that on 14.05.2007, he (accused) had in fact gone to Shimla along with Kirath Bahadur (PW.3) to meet his son in law. We do not find any chain proved and established by the prosecution. The case is speculative and uncertain. It was urged by the prosecution that the motive for the murder was two circumstances (i) accused was found last seen with the deceased; and (ii) quarrel took place between the accused and his wife. It is the husband who was with his wife and no one else which is nothing strange; normally husband and wife may quarrel but does that furnish a motive for murder? 6. In the circumstances, the appeal is accepted, the judgment of trial court is set aside. The appellant is directed to be released forthwith if not wanted in any other case. Fine if deposited be refunded.